This case is before the Authority on the Respondent's motion for
reconsideration of the Authority's decision in 48 FLRA 787
(1993). The Respondent also requests a waiver of the time
limit set forth in section 2429.17 of our Rules and Regulations within which to
file its request. The General Counsel filed an opposition to the motion.

Section 2429.17 of our Rules and Regulations permits a party that can
establish extraordinary circumstances to request reconsideration of an
Authority decision. For the following reasons, we conclude that extraordinary
circumstances exist warranting our waiver of the time limit set forth in
section 2429.17. In addition, we find that extraordinary circumstances exist
warranting our grant of the Respondent's request for reconsideration.

II. The Decision in 48 FLRA 787

In 48 FLRA 787, the Authority concluded that the Respondent violated
section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations
Statute (the Statute) when it permitted a Union representative to attend, but
not to speak or otherwise participate in, two separate meetings with two
probationary bargaining unit employees. The meetings encompassed Nurses
Professional Standards Board (NPSB) peer reviews, conducted under the pertinent
provisions of title 38 of the United States Code.(1) The two employees were terminated on the recommendation of
the NPSB.

The Authority found that the NPSB reviews constituted investigatory
examinations entitling the two affected employees to the representation rights
provided in section 7114(a)(2)(B) of the Statute. Accordingly, we concluded
that, by allowing a Union representative to attend but not speak or otherwise
participate in the formal proceedings, the Respondent violated section
7114(a)(2)(B). To remedy the unfair labor practice, the Authority ordered,
among other things, the Respondent to allow Union representatives to
participate in professional standards board peer reviews for probationary
employees.

In reaching these conclusions, the Authority rejected the Respondent's
argument that 38 U.S.C. § 7422 precluded collective bargaining over
regulations governing peer reviews. We stated that the rights set forth in
section 7114(a)(2)(B) of the Statute are not dependant on collective
bargaining. We further found that the Respondent could not, through issuance of
VA Manual MP-5, Part II, Chapter 4.06(4), limit the rights granted to unit
employees by the Statute.(2) We also found that nothing in title 38 excluded unit
employees from coverage under section 7114(a)(2)(B) and that the Respondent
failed to demonstrate that section 7114(a)(2)(B) was inconsistent with its
authority to terminate probationary employees.

III. Motion for Reconsideration

A. Respondent

The Respondent contends that the Authority's decision in 48 FLRA 787 is
inconsistent with the subsequently issued decision in U.S. Department of
Veterans Affairs v. FLRA, 9 F.3d 123 (D.C. Cir. 1993) (Veterans Affairs
v. FLRA). In this regard, the Respondent asserts that, although Veterans
Affairs v. FLRA concerned the Respondent's authority to prescribe
regulations regarding working conditions for "hybrid" employees, the court
found that such authority was derived from the Respondent's authority to
prescribe regulations governing the working conditions of "non-hybrid"
employees.(3) Motion at 3. According to the
Respondent, the court found that Respondent's authority to prescribe
regulations existed "'[n]otwithstanding any law, Executive [O]rder, or
regulation[.]'" Id. at 5 (quoting Veterans Affairs v. FLRA, 9
F.3d at 127).

The Respondent also argues that the Authority's determination that
section 7114(a)(2)(B) rights are not tied to collective bargaining is erroneous
and "gives a 'miserly' construction to 'collective bargaining.'" Id. at
7. The Respondent asserts that the Authority has previously construed
"'collective bargaining' to include all labor-management activities affecting
working conditions, as well as the union's status as exclusive representative."
Id. Respondent alleges that, as section 7114(a)(2)(B) rights involve
collective bargaining and, under 38 U.S.C. § 7422, collective bargaining
does not extend to peer review matters, the representation rights set forth in
section 7114(a)(2)(B) of the Statute do not apply to peer review proceedings.

B. General Counsel

The General Counsel argues that the Respondent's request for
reconsideration does not establish extraordinary circumstances, within the
meaning of section 2429.17 of the Authority's Rules and Regulations, and that
the request is an attempt "to reargue the case in a . . . different manner."
Response at 2. The General Counsel further argues that the Respondent has not
established that extraordinary circumstances exist to warrant granting the
Respondent's motion to waive the time limit set forth in section 2429.17 of our
Regulations.

IV. Analysis and Conclusions

In Veterans Affairs v. FLRA, the court held, as relevant here,
that the Respondent was free to prescribe regulations governing peer review
procedures for nonhybrid employees without regard to bargaining obligations set
forth in the Statute. 9 F.3d at 129. The court noted that, although Congress
amended certain provisions of title 38 in 1991, the Respondent remained free,
after the 1991 amendments, to "prescribe, without negotiating, regulations
governing, for example, peer review procedures with respect to nonhybrid
employees." Id. The court observed that the Respondent's "absolute"
power in this regard was underscored by 38 U.S.C. § 7421(a), which
authorizes the Respondent to "prescribe by regulation the . . . conditions of
employment" of nonhybrid employees "[n]otwithstanding any law, Executive
[O]rder, or regulation." Id. at 127, 129. Moreover, the court held that,
under 38 U.S.C. § 7425, such regulations could override rights set
forth in the Statute other than those statutory rights which specifically
reference title 38 employees.(4)Seeid. at 131.

We have decided to adhere to and will henceforth follow the court's
decision in Veterans Affairs v. FLRA. Consistent with that decision, the
Respondent is authorized to prescribe regulations governing, among other
things, probationary peer review proceedings for nonhybrid employees without
regard to the bargaining and representational rights and obligations set forth
in the Statute. Also consistent with the court's decision, such regulations may
override statutory rights other than those specifically referencing title 38
employees. Nothing in section 7114(a)(2)(B) of the Statute specifically
references title 38 employees. Therefore, we reverse our finding in
48 FLRA 787 that the Respondent could not, by regulation, limit or
override those rights by regulation.

As noted previously, the Respondent has promulgated a regulation, VA
Manual MP-5, Part II, Chapter 4.06(4), which precludes Union representation in
probationary peer review hearings. The Respondent acted consistent with that
regulation in refusing to permit Union representatives to participate in the
disputed peer reviews. Accordingly, those actions do not constitute a violation
of the Statute.

In this situation, noting particularly the intervening court decision
in Veterans Affairs v. FLRA, we find that extraordinary circumstances
have been established under section 2429.23(b) of our Rules and Regulations
warranting a waiver of the time limit within which to file a request for
reconsideration and warranting our grant of the Respondents' request for
reconsideration.(5) Accordingly, we will grant the Respondent's request and
dismiss the consolidated unfair labor practice complaint.

V. Order

The consolidated complaint in Cases Nos. 4-CA-10814 and 4-CA-10816 is
dismissed.

2. VA Manual MP-5, Part II,
Chapter 4.06(4) provides that affected employees are entitled to notification
of reviews by a professional standards board and that such notification must
include, among other things:

Notification that the review is being conducted during the employee's
probationary period and that he has no entitlement to legal or other
representation. However, upon request, he will be given assistance in preparing
his case, or he may seek assistance in his behalf from within the
VA.

Notwithstanding any other provision of law, no provision of title 5
or any other law pertaining to the civil service system which is inconsistent
with any provision of . . . this chapter shall be considered to supersede,
override, or otherwise modify such provision of . . . this chapter except to
the extent that such provision of title 5 or of such other law
specifically provides, by specific reference to a provision of this chapter, or
such provision to be superseded, overridden, or otherwise modified.

5. Although the General Counsel notes
that the Respondent's request was not filed within 10 days after service of the
Authority's decision in 47 FLRA 787